Increasing diversity within an organization helps it to mirror the society in which it operates. A robust, diverse workforce provides employers with a resource to engage with the public in a real and practical fashion.
However, as diversity increases, so too do the differences between employees. While most of these differences present themselves without difficulty, occasionally, workplace rules or managerial perceptions can restrict the ability of certain employees to perform job tasks. In these situations, an employer may be faced with a duty to accommodate those employees.
The “duty to accommodate” flows from courts’ interpretation of Human Rights legislation. Essentially, an employer must provide a workplace that recognizes the differences in a diverse society. If employees are adversely affected because of a proscribed ground, an employer must seek to “accommodate” those employees to the point of undue hardship.
There are often competing and valid interests when the duty to accommodate is engaged. For example, is it legitimate to require a Sikh employee to wear a hardhat for safety reasons, when such a request may violate his religious beliefs? For example, in British Columbia Maritime Employers Assn. v. International Longshore and Warehouse Union, Local 500 (Dhillon Grievance), the arbitrator found that the employer was not required to allow employees to work in positions without a hard hat where one was required by policy. In this case, the employer’s process for accommodating such employees by providing them access to other jobs (even if those jobs were preferred positions) satisfied its duty to accommodate.
An employers’ obligations are significant and require managers to clearly demonstrate their attempts to accommodate the employee. Thoughts and beliefs will not discharge the duty, an actual investigation of alternatives and adjustments must be performed. For example, in disability cases, an employer must obtain information about the employee’s medical limitations, the prognosis for recovery and the ability of the employee to perform other tasks. Once this information is received, the employer must examine the workplace to determine if a meaningful position is available. The steps an employer must perform include:
- Clearly communicating with the employee about and during the process;
- Obtaining the necessary facts to address the potential accommodation;
- Examining whether changes can be made to the employees existing job to take into account the employee’s special needs;
- Examining whether there are other positions within the organization that the employee could perform;
- Considering the reasonable solutions proposed by the employee; and
- Being prepared to make substantial and meaningful adjustments.
Although significant, the duty to accommodate is not unlimited. An employee is not entitled to the “perfect” or even her first choice of accommodation. The solution must work for both the employee and the employer. The case law describes many things that an employer is not required to do. These include:
- An employer need not satisfy the unreasonable demands of an employee;
- An employer is not required to accommodate a situation that it did not know about and could not reasonably been aware;
- There is no requirement to create a job where none exists;
- An employer is not required develop “make work” tasks that provide it with no benefit;
- An employer is not required to displace another employee to accommodate an affected employee;
- An employer is not required to place an employee in a position that he/she is not qualified to perform;
- An employer does not necessarily need to guarantee the income of an employee seeking an accommodation.
The employee is also required to be reasonable in the accommodation process. He or she must provide the employer with the necessary information. They cannot refuse a reasonable accommodation even if that position is not their preferred option.
In most cases, although it may be time consuming, a reasonable accommodation can be found. However, when dealing with accommodation situations, it is extremely important that employers do not take short cuts and that each and every step of the process is properly documented.
Graeme McFarlane is a partner at Roper Greyell LLP, a firm focused on partnering with companies to find solutions to workplace legal issues.